Thomas v Hooper[2023] QCATA 171

REASONS FOR DECISION

1. [1]
   The appellants were tenants of the respondents in residential premises until the tenancy was terminated on 1 June 2023 by the decision of a Member^[1] on 1 March 2023.  An application by the appellants for leave to appeal from that decision was filed on 27 March 2023, and on the same day they filed an application for a stay of the decision.  It is the latter application which is before me. 
2. [2]
   Because it was a decision in a minor civil dispute, the appellants require leave to appeal.^[2]  In general when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which a decision of the Appeal Tribunal would be to the public advantage.^[3]  Leave is not readily given in a matter involving the exercise of a discretion on a matter of practice or procedure.^[4] 
3. [3]
   As leave has not yet been granted, the power to stay the decision under the QCAT Act s 145(2) has not arisen.^[5]There is however power under the QCAT Act s 58(1) to stay a decision pending the hearing of an application for leave to appeal.^[6]  The fundamental justification for staying judicial orders pending appeal is to ensure that the orders which ultimately might be made on the appeal are fully effective.^[7]  Another way of putting it is that a stay is necessary to preserve the subject matter of the litigation.^[8] 
4. [4]
   The usual factors taken into account are whether there is a good arguable case, whether the applicant would be materially disadvantaged without a stay, and whether the balance of convenience favours a stay.^[9]Other considerations include the apparent strength of the appeal, any prejudice to the respondent from the stay if the appeal fails and whether the appellant will be able to make it good, and whether the application for a stay has been made promptly.  The issue of a stay commonly arises in circumstances where there is good reason to believe that, unless the stay is granted, there is at least a substantial risk that the appeal will be rendered futile.^[10] 

Ground of appeal

5. [5]
   The application for leave to appeal provides grounds which are not clear, but essentially say that the appellants were not able to present their case, or put forward evidence of the true facts.  Written submissions filed on 31 March 2023 alleged that there was a denial of procedural fairness, on the basis that they sought to put forward evidence in the form of a police record of an incident which would have shed a different light on a matter in issue before the Tribunal.  An adjournment sought for the purpose of giving time to obtain that, and an ambulance report of the same incident, was refused.  There was also a complaint that the second appellant did not have the opportunity to put her case at the hearing, and that the respondents had failed to accept an offer to vacate which gave the appellants more time to leave.  It was also submitted that since then there had been no more problems with the neighbours. 

Background

6. [6]
   The appellants were tenants under an agreement for a period expiring in January 2024.  The respondents sought to terminate the tenancy early on the ground of objectionable behaviour on the part of the appellants.  Their application was filed in the Tribunal on 1 December 2022, supported by statements by two neighbours describing what could be found to be objectionable conduct on the part of the male appellant.  There were also filed a four page statement from the female appellant, putting her side of the story, which attached some photos and a couple of emails from the male appellant, and a sixteen page statement by the male appellant, which also attached a number of photos and a number of emails, both filed on 12 December 2022. 
7. [7]
   On 15 December 2022 the application was adjourned for hearing on 1 March 2023, and a direction made that any further material had to be filed by 16 February 2023.  At the hearing on 1 March a third neighbour gave evidence, but after being questioned by the Member, it emerged that that neighbour could not say anything directly relevant to an allegation of objectionable behaviour, and was excused.  The male appellant’s response to this was to say to the Member “You’ve been most kind and fair.”^[11] 
8. [8]
   One of the neighbours whose statement had been filed in support of the application gave evidence.  In evidence she described an altercation she had witnessed between the male appellant and her husband, where the appellant had used an offensive term to her husband.  In response, the husband had punched the appellant, and subsequently police attended and prompted mutual apologies.  She also spoke of other things which had left her unsettled and fearful.  She was cross-examined by the male appellant, although he clearly had no idea how to cross-examine, and generally just made a number of statements.  Nothing useful was achieved by him. 
9. [9]
   He then spoke to the Member, giving some details of how he had related to the neighbours, in terms which would have suggested that he might well have engaged in conduct which could be found to be a public nuisance.  It was clear that the Member had read the lengthy statement which had been filed, and it was clear that the Member was influenced by what the male appellant said in court about the way he behaves when people do things that annoy or upset him.  It was also clear enough that the male appellant was easily annoyed, and really only interested in his own opinion about things.  This led the Member to cut things short by finding that there was a nuisance because of the fight with the neighbour, and that the ground of objectionable behaviour had been made out on that basis.  Because of that, it was not necessary to consider the allegations made by the other neighbour who had provided a statement. 
10. [10]
    There were then some discussions about how long the appellants would need to get out.  They asked for August (p 40), apparently because they expected that it would take some time to find alternative accommodation, but this was over six months away.  The Member adjourned briefly, and then was told by the agent (representing the respondents) that they would accept termination in June: p 42.  The appellants did not argue further about this, and the termination was ordered to take effect on 1 June 2023. 

Consideration

11. [11]
    Although it is fair to say that the appellants were not allowed to say everything they wanted to say, they were certainly allowed the opportunity to put their case, in relation to the particular ground found by the Member, both in writing and orally, and did so at some length.  Matters sought to be raised by the appellants in written submissions in support of the stay application were not raised in cross-examination of the witness, and although there certainly were differences between the witness and the male appellant about the facts, the Member obviously regarded these as irrelevant to the issue of whether the male appellant made a nuisance of himself that day.  Whether such a finding was open as a matter of law on the evidence is a question of law; whether it was the correct finding in the circumstances is a question of fact.  Without pre-judging the issues in the appeal, it is well established that leave to appeal is not usually given to dispute findings of fact made at first instance in a minor civil claim proceeding, and I do not consider that the appellants have good prospects of showing that the Member’s finding was not open on the evidence. 
12. [12]
    The content of the police and ambulance reports is most unlikely to be of any consequence.  Although on 8 December 2022 an application for adjournment was refused, on 15 December 2022 there was an adjournment given, so the refusal cannot have prejudiced the appellants.  The appellants knew then that there would be a hearing on 1 March 2023, so they had plenty of time to obtain such reports, and I cannot see how they would be of any real significance anyway.  Assuming that they recorded, no doubt in summary form, the versions given by the parties, such records would really add nothing to their credibility.  The female appellant had provided a detailed version in writing, and was given some opportunity to say things during the hearing, although it appears from the transcript that generally their case was advanced by the male appellant.  I do not see how she was denied procedural fairness.  The submissions based on failed negotiations are not admissible, and evidence about what has happened subsequently is irrelevant to whether there was any error at the hearing. 
13. [13]
    Accordingly, so far as I can see at this point, the prospects of success on the application for leave to appeal are quite limited.  Although it is true that the respondents could have the appellants put out of the leased premises at any time, and it is possible that the substantive appeal will not be decided prior to the expiry of the current tenancy agreement anyway, so that there would be a risk of a successful appeal not resulting in a return to the premises, it is quite likely that the respondents would not extend the lease anyway, so any potential return to the premises would be of little value to the appellants.  A stay would also stop the respondents from reletting the premises sooner rather than later. 
14. [14]
    The starting point is that a party successful at a hearing is entitled to the fruits of that success, unless the unsuccessful party can show good reason why that should be departed from in the particular case.^[12]  In the circumstances of the present matter, I am not satisfied that the appellants have shown it is appropriate to stay the decision of the Member pending the hearing of the application for leave to appeal.  The application to stay the decision of the Tribunal made on 1 March 2023 is dismissed.